U.S. EPA has released a new interpretive memorandum and technical guidance addressing implementation of the Underground Injection Control (UIC) Program Class II requirements under the Safe Drinking Water Act (SDWA) relating to hydraulic fracturing (fracking) activities using diesel fuels. As amended by the Energy Policy Act of 2005, these provisions exempt fracking operations from the requirement to obtain a UIC permit, except where diesel fuel is used in the fracturing fluids or propping agents. Through these materials, the agency seeks to provide the EPA Regions and State Directors responsible for implementing the UIC Program Class II requirements clarification on what is required under the statute/regulations as well as (non-binding) technical recommendations to consider when issuing permits involving these activities. In its Response to Summary Comments with respect to the guidance, the agency states the following objectives:

“1) to explain the existing legal requirement under the 2005 statutory amendments to the SDWA and the EPA’s implementing regulations regarding applicability of UIC program permitting requirements, that any owner or operator who injects diesel fuels in [hydraulic fracturing] for oil or gas extraction must obtain a UIC Class II permit before injection;

2) to explain the agency’s interpretation of the statutory term ‘diesel fuels in hydraulic fracturing for oil or gas extraction’ as used in the SDWA; and

3) to describe existing UIC Class II program requirements for permitting underground injection of diesel fuels in [hydraulic fracturing] and to provide recommendations for EPA permit writers to consider in implementing these requirements to ensure protection of underground sources of drinking water (USDWs).”

The agency also states in its notice announcing the availability of the documents, which is to appear in the Federal Register this week, that it anticipates that owners and operators will find the technical recommendations useful during the EPA permitting process. Further, the agency provides, the guidelines “are consistent with best practices for hydraulic fracturing in general, including those found in state regulations as well as model guidelines and voluntary standards developed by industry and stakeholders,” so “States and Tribes responsible for issuing permits and/or updating regulations may find the recommendations useful in improving the protection of underground sources of drinking water and public health wherever hydraulic fracturing is practiced.”

In creating these materials, EPA considered the input it received in response to its request for public comment published in the Federal Register on May 10, 2012 (77 FR 27451).

EPA’s pre-publication version of the notice of availability can be reviewed here.